July/August 2004 VOICE FOR THE DEFENSE 1

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many. In this connection, it can be embarrassing for the expert to have to answer the question as to how many normal people s/he has examined and if the answer is “few” or “none”, then to have the question arise as to how he or she then knows that he or she is dealing with abnormal responses. Endnotes 1 See In the Interest of J.B., ___ S.W.3d ____ , 2002 WL 31686754 (Tex. App. - Waco 2002, slip opinion). 2 See In re: The Commitment of Boyd Mullens, ___ S.W.3d ____, 2002 WL 31835068 (Tex. App. - Beaumont 2002, slip opinion). Interestingly, while this case involves the prediction of future dangerousness and a psychiatrist, who had never seen Mullens, testified that Mullens represented a future danger, no mention of the APA amicus curiae brief in Kansas v. Hendricks, infra, appears anywhere in the opinion. This, even though the Kansas v. Hendricks, 521 U.S. 346 (1997) opinion is cited by the court. 3 Not all psychologists and psychiatrists are equal; some are real scientists, who do good, solid, scientific research. The real scientists are the likes of Maggie Bruck, Ph.D., Stephen Ceci, Ph.D., etc.. The others have no idea of the scientific method, and just promote psychobabble and their own personal opinions dressed up as “clinical insight.” Psychiatrists, while medical doctors, fall into the same categories. Technically speaking, a psychiatrist is really only capable of diagnosing organic brain disease and treating that with medication. Unfortunately, many of them dabble into administering psychological tests and counseling, which they usually have minimal training in – areas that they really do not have the training for. See “Reign of Error” by Lee Coleman, M.D. 4 In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court approved the use of psychiatric testimony to aid the jury in determining future dangerousness. This case was before the Supreme Court’s decision in Daubert. 5 Unless otherwise noted, all suggested questions and information regarding psychological tests, etc., are derived from “Coping With Psychiatric and Psychological Testimony”, Fifth Edition (Law and Psychology Press, 1995). This treatise is available through Amazon.com and is highly recommended to any attorney who has to challenge any mental health professional. 6 Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App. 1998) 7 “Studies on the prediction of violence are consistent: clinicians are wrong at least twice as often as they are correct.” Faust and Ziskin. Attorneys who deal with predictions of future dangerousness should memorize Judge Teague’s dissents in these two cases. He makes a persuasive argument for replacing Dr. Death with the flipping of a coin, based on Faust and Ziskin’s paper and the historical precedent of the method used by General Antonio Lopez de Santa Anna in deciding which of the 176 captured Texians should be executed in 1843. 8 The Tarasoff, Barefoot and Hendricks cases are important because the American Psychiatric Association filed Amicus briefs in which they detailed the empirical data that proves the inability of any psychiatrist (or psychologist) to predict future behavior. In Hendricks, the APA discussed the empirical studies on recidivism and the inability to predict recidivism, noting that based on these empirical studies, the psychiatrists’ ability to make these predictions was no better than 50 percent - 50 percent (tossing a coin) and had been as low as 6 percent! Hendricks is important because the amicus brief filed by the APA is available online, through WestLaw®, details some of the empirical studies done on the ability to predict future behavior based on recidivism and is therefore readily available to use in impeachment of any “expert” who would opine on future any future conduct, including dangerousness. 9 §501.001, Occupations Code, defines the practice of psychology to include psychotherapy. It does not differentiate between Cognitive Behavior Therapy or Freudian or Jungian or any other variety of psychoanalysis. It does not even define what psychotherapy is. 10 §501.003, Occupations Code, specifies that the practice of psychology includes hypnosis for health care purposes and hypnotherapy. It does not specify what training is required to practice these forms of hypnosis. 11 As of the writing of this paper, the authors are involved in the appeal of a conviction for aggravated sexual assault where one of the State’s M.D.’s claimed to be an expert in “Child Abuse and Neglect” as a result of having done a 2-year fellowship in “Child Abuse Neglect” at a certain medical school. A check with the medical school in question showed that the medical school had never had a fellowship by that name. When a person claims expertise, be sure to explore the grounds for the claim. 12 There are other cases that hold that the testimony is admissible. Any challenge to the admissibility of this type of evidence would not be complete without a review of Gier v. Educational Service Unit No. 16, 845 F.Supp. 1342 (D. Neb. Feb. 2, 1994), aff’d 66 F.3d 940 (8th Cir. 1995). Counsel who are going to mount a Rule 702 challenge to mental health experts should be familiar with all of these cases. These three cases, and Gier, hold that the testimony should be excluded and show the reasoning why. 13 The authors recognize that they are citing cases from the Supreme Court of Texas and from the Supreme Court of the United States, instead of cases from the Court of Criminal Appeals. In light of the fact that the Civil and Criminal Rules of Evidence have been replaced with the Texas Rules of Evidence; and since our Rule 702 is based on the federal Rule 702, these cases should be highly persuasive. 14 Psychiatrists are interesting. As noted by Lee Coleman, M.D., they are trained in medicine but usually do not practice it. They tend to practice psychology, which they usually have little training in. 15 Confirmatory Bias is the tendency to maintain beliefs, even in the face of counterevidence – to notice and remember information that confirms what we believe, and to overlook, ignore, or reject information that questions or disconfirms our beliefs. Confirmatory bias is pervasive and has been demonstrated across a wide range of studies that involve both laypersons and professionals. There are five aspects of confirmatory bias. These are explained in more detail later in this paper. 16 One of the hallmarks of the pseudo-scientist is that they will almost never make a record on which they can be checked. This is one of the reasons why therapists are so adverse to recording their sessions with patients on audiotape or videotape. Real scientists keep careful records of everything they do, including videotaping interviews, so that their work and their conclusions can be checked by their peers. 17 If you are going to try to use this literature, the way to do it is not to have your expert say that in his or her opinion, this confession may have been coerced. Your expert should tell the court what the vast body of scientific literature tells us, name the treatises, studies, etc., and draw a conclusion from that, without invading the province of the trier of fact by making the ultimate conclusion. 18 See In the Interest of J.B., ___ S.W.3d ____ , 2002 WL 31686754 (Tex. 28 VOICE FOR THE DEFENSE July/August 2004
App. - Waco 2002, slip opinion). 19 A Jungian will offer one explanation for your depression; a Freudian will offer another; and a psychiatrist will often say, “Who cares what the explanation is; just take this Prozac.®” 20 As noted by the American Psychiatric Association in its Amicus brief in Kansas v. Hendricks, 521 U.S. 346 (1997), APA Amicus brief at 1996 WL 469200, the ability to predict future behavior is no better than 50 percent - 50 percent and is often as low as 6 percent! 21 This really should be called anatomically exaggerated dolls. The genitalia are so disproportionate in size, they cannot help but attract attention. 22 Jim Wood, a researcher and clinician at the University of Texas at El Paso, concludes: “It would be better if psychologists read tea leaves instead of the Rorschach: at least with tea leaves, no one but psychologists would take the results seriously.” 23 As used herein, psychology includes psychiatry except to the extent that psychiatry deals with organic brain disease. Organic brain disease is a medical condition and the proper subject of expert opinion. 24 The original DSM, published not long after World War II, had 9 general categories of disorders: several kinds of brain disorders; mental deficiency; psychotic disorders; and personality disorders. By 1994, the DSM-IV had ballooned, containing nearly 400 diagnoses of mental disorder. See Houts, Arthur C. (2002). Discovery, invention, and the expansion of the modern Diagnostic and Statistical Manuals of Mental Disorders. L.E. Beutler & M.L. Malik (eds.), Rethinking of the DSM: A psychological perspective. Washington, D.C., American Psychological Association. 25 See Tarasoff v. Board of Regents of the University of California; Amicus Brief of APA in Kansas v. Hendricks. It is also for this reason that psychologists are unable to explain why not every Vietnam vet has PTSD, or why not every survivor of the Twin Towers has survivor’s guilt, etc.. 26 A recent scientific review of the literature found no evidence that childhood experiences or traumas cause eating disorders in adolescence. 27 Something as seemingly simple as a diagnosis of clinical depression is anything but. If the etiology of the depression is unknown, then you have no way of knowing if you are dealing with a psychological condition or the symptom of an underlying physical condition. Steven Hotze, M.D., in Houston, treats many women who have been diagnosed as suffering from depression and who have been prescribed Prozac® or other mood-elevators. Dr. Hotze’s clinical studies have shown that virtually all of these women respond to hormone-replacement therapy and that there is no need to administer Prozac ® or any other moodelevator to these women. The question then is whether these women were suffering from the psychological condition of depression or from the physical effects of imbalanced hormones? And, if the condition can be eliminated through the administration of replacement hormones in these women, isn’t the prescription of Prozac® merely treating the symptom, instead of the underlying cause? Which brings us back to the original question: what is the etiology of the depression and what is its treatment? 28 For instance, there is disagreement among psychologists as to whether the IQ test measures innate or acquired intelligence. 29 There are five different schools for interpreting the results obtained on the Rorschach test! Exner just happens to be the school that is most commonly used. Ask yourself, if you can take the same answers from the patient and come up with five totally different results as to the meaning of those answers, depending on which school you subscribe to, is this science? 30 Many psychological tests purport to measure the unconscious, or to allow the psychologist to delve into the patient’s unconscious. Unlike conscious thought and cognitive processes that occur outside of conscious awareness (the “subconscious”), the “unconscious” – as a reified “thing” – has never been proven to exist. If there is an unconscious, is it Freud’s “pocket” unconscious, where each individual’s unconscious is distinct and separate from every other persons’; or is it Jung’s collective unconscious, where we are all part of a greater unconscious? If Jung is right, how does the psychologist know that what is being observed does not actually belong to Osama Bin Laden or Saddam Hussein? The possibilities of this line of questioning can be more fun than the law ought to allow. 31 There is a DSM-IV-R, which is an interim revision that made no significant changes to the list of disorders. 32 Quoted from “Coping with Psychiatric and Psychological Testimony” by Jay Ziskin, Ph.d., Ll. B. - Fifth Edition. 33 If observers cannot even agree on what is being measured, how can the test pass the test of soft science, much less real science? 34 The computer-generated scoring on the MMPI and the Exner Rorschach - start off with similar disclaimers. 35 Remember the adage from computer programming: “garbage in - garbage out.” 36 Based on experience in termination cases, expect the State or the mental health professional to assert the privileges contained in §§611.001, et seq., Health and Safety Code, to try to avoid disclosure of this underlying information. The Confrontation Clause should overcome this assertion of privilege in criminal cases. 37 Based on experience, it is interesting to note how many mental health professionals will profess to administering tests for which they do not have any manuals! 38 For years, it didn’t occur to anyone that men might have moods, too! When men were administered the “Menstrual Distress Questionnaire,” they wouldn’t admit to having a single headache or grumpy mood. But when they were given a “Mood Symptoms Inventory” – with physical symptoms associated with menstruation (such as breast tenderness) removed – there were no significant differences in the scores of men and women. 39 This problem also ignores the fact that the eighth grade reading level under the TASS / TAKS tests is what used to be the fourth grade under the Iowa / Indiana standardized tests. So the first questions you have to ask are, “What do you mean by the eighth grade? And does the person taking the test even fit that definition?” If not, the test results are worthless. L.T. “Butch” Bradt is a general practitioner in solo practice in Houston. Licensed for almost 30 years and in 23 different courts, he has handled cases throughout the country. Recognized as an experienced trial and appellate attorney, he handles tax, civil, criminal and family law matters. A frequent speaker at CLE events, in and out of state, Bradt earned a B.A. in English from the University of Houston and a J.D. from South Texas College of Law. Carol Tavris has a Ph.D. in social psychology and writes and lectures frequently about psychological research. She has given many addresses to judges and attorneys on the difference between expert testimony based on good psychological science and that based on pseudoscience and subjective clinical opinion. She is coauthor of two leading textbooks in psychology and many July/August 2004 VOICE FOR THE DEFENSE 29
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Page 5 and 6: Sprint PCS is offering a 15 percent
Page 7 and 8: then hearing a prosecutor call the
Page 9 and 10: New Member Endorser New Member Endo
Page 11 and 12: If a sentence within the statutory
Page 13 and 14: the reason for its impositions of a
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Page 19 and 20: wherein the Association acknowledge
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Page 35 and 36: NO. 2003 STATE OF TEXAS § IN THE 5
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